Now, Sir, the fact is, that the Supreme Court has never been so

mischievous as during the first ten years of its power, or so

respectable as it has lately been. Everybody who knows anything of its

early history knows, that, during a considerable time, it was the terror

of Bengal, the scourge of the native population, the screen of European

delinquents, a convenient tool of the Government for all purposes of

evil, an insurmountable obstacle to the Government in all undertakings

for the public good; that its proceedings were made up of pedantry,

cruelty, and corruption; that its disputes with the Government were at

one time on the point of breaking up the whole fabric of society; and

that a convulsion was averted only by the dexterous policy of Warren

Hastings, who at last bought off the opposition of the Chief Justice for

eight thousand pounds a year. It is notorious that, while the Supreme

Court opposed Hastings in all his best measures, it was a thoroughgoing

accomplice in his worst; that it took part in the most scandalous of

those proceedings which, fifty years ago, roused the indignation of

Parliament and of the country; that it assisted in the spoliation of the

princesses of Oude; that it passed sentence of death on Nuncomar. And

this is the Court which we are to restore from its present state of

degeneracy to its original purity. This is the protection which we are

to give to the natives against the Europeans. Sir, so far is it from

being true that the character of the Supreme Court has deteriorated,

that it has, perhaps, improved more than any other institution in India.

But the evil lies deep in the nature of the institution itself. The

judges have in our time deserved the greatest respect. Their judgment

and integrity have done much to mitigate the vices of the system.

The worst charge that can be brought against any of them is that of

pertinacity, disinterested, conscientious pertinacity, in error. The

real evil is the state of the law. You have two supreme powers in India.

There is no arbitrator except a Legislature fifteen thousand miles off.

Such a system is on the face of it an absurdity in politics. My

wonder is, not that this system has several times been on the point

of producing fatal consequences to the peace and resources of

India;--those, I think, are the words in which Warren Hastings described

the effect of the contest between his Government and the Judges;--but

that it has not actually produced such consequences. The most

distinguished members of the Indian Government, the most distinguished

Judges of the Supreme Court, call upon you to reform this system. Sir

Charles Metcalfe, Sir Charles Grey, represent with equal urgency the

expediency of having one single paramount council armed with legislative

power. The admission of Europeans to India renders it absolutely

necessary not to delay our decision. The effect of that admission would

be to raise a hundred questions, to produce a hundred contests between

the Council and the judicature. The Government would be paralysed at the

precise moment at which all its energy was required. While the two equal

powers were acting in opposite directions, the whole machine of the

state would stand still. The Europeans would be uncontrolled. The

natives would be unprotected. The consequences I will not pretend to

foresee. Everything beyond is darkness and confusion.

Having given to the Government supreme legislative power, we next

propose to give to it for a time the assistance of a commission for the

purpose of digesting and reforming the laws of India, so that those laws

may, as soon as possible, be formed into a Code. Gentleman of whom I

wish to speak with the highest respect have expressed a doubt whether

India be at present in a fit state to receive a benefit which is not yet

enjoyed by this free and highly civilised country. Sir, I can allow to

this argument very little weight beyond that which it derives from the

personal authority of those who use it. For, in the first place, our

freedom and our high civilisation make this improvement, desirable as

it must always be, less indispensably necessary to us than to our Indian

subjects; and in the next place, our freedom and civilisation, I fear,

make it far more difficult for us to obtain this benefit for ourselves

than to bestow it on them.

I believe that no country ever stood so much in need of a code of laws

as India; and I believe also that there never was a country in which the

want might so easily be supplied. I said that there were many points of

analogy between the state of that country after the fall of the Mogul

power, and the state of Europe after the fall of the Roman empire. In

one respect the analogy is very striking. As there were in Europe then,

so there are in India now, several systems of law widely differing from

each other, but coexisting and coequal. The indigenous population has

its own laws. Each of the successive races of conquerors has brought

with it its own peculiar jurisprudence: the Mussulman his Koran and the

innumerable commentators on the Koran; the Englishman his Statute Book

and his Term Reports. As there were established in Italy, at one and

the same time, the Roman Law, the Lombard law, the Ripuarian law, the

Bavarian law, and the Salic law, so we have now in our Eastern empire

Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling

with each other and disturbing each other, varying with the person,

varying with the place. In one and the same cause the process and

pleadings are in the fashion of one nation, the judgment is according

to the laws of another. An issue is evolved according to the rules

of Westminster, and decided according to those of Benares. The only

Mahometan book in the nature of a code is the Koran; the only Hindoo

book, the Institutes. Everybody who knows those books knows that they

provide for a very small part of the cases which must arise in every

community. All beyond them is comment and tradition. Our regulations in

civil matters do not define rights, but merely establish remedies. If

a point of Hindoo law arises, the Judge calls on the Pundit for an

opinion. If a point of Mahometan law arises, the Judge applies to the

Cauzee. What the integrity of these functionaries is, we may learn from

Sir William Jones. That eminent man declared that he could not answer

it to his conscience to decide any point of law on the faith of a Hindoo

expositor. Sir Thomas Strange confirms this declaration. Even if there

were no suspicion of corruption on the part of the interpreters of the

law, the science which they profess is in such a state of confusion that

no reliance can be placed on their answers. Sir Francis Macnaghten tells

us, that it is a delusion to fancy that there is any known and fixed law

under which the Hindoo people live; that texts may be produced on any

side of any question; that expositors equal in authority perpetually

contradict each other: that the obsolete law is perpetually confounded

with the law actually in force; and that the first lesson to be

impressed on a functionary who has to administer Hindoo law is that it

is vain to think of extracting certainty from the books of the jurist.

The consequence is that in practice the decisions of the tribunals are

altogether arbitrary. What is administered is not law, but a kind of

rude and capricious equity. I asked an able and excellent judge lately

returned from India how one of our Zillah Courts would decide

several legal questions of great importance, questions not involving

considerations of religion or of caste, mere questions of commercial

law. He told me that it was a mere lottery. He knew how he should

himself decide them. But he knew nothing more. I asked a most

distinguished civil servant of the Company, with reference to the clause

in this Bill on the subject of slavery, whether at present, if a dancing

girl ran away from her master, the judge would force her to go back.

"Some judges," he said, "send a girl back. Others set her at liberty.

The whole is a mere matter of chance. Everything depends on the temper

of the individual judge."

Even in this country we have had complaints of judge-made law; even in

this country, where the standard of morality is higher than in almost

any other part of the world; where, during several generations, not

one depositary of our legal traditions has incurred the suspicion of

personal corruption; where there are popular institutions; where every

decision is watched by a shrewd and learned audience; where there is an

intelligent and observant public; where every remarkable case is fully

reported in a hundred newspapers; where, in short, there is everything

which can mitigate the evils of such a system. But judge-made law, where

there is an absolute government and a lax morality, where there is no

bar and no public, is a curse and a scandal not to be endured. It is

time that the magistrate should know what law he is to administer, that

the subject should know under what law he is to live. We do not mean

that all the people of India should live under the same law: far from

it: there is not a word in the bill, there was not a word in my right

honourable friend's speech, susceptible of such an interpretation.

We know how desirable that object is; but we also know that it is

unattainable. We know that respect must be paid to feelings generated by

differences of religion, of nation, and of caste. Much, I am persuaded,

may be done to assimilate the different systems of law without wounding

those feelings. But, whether we assimilate those systems or not, let us

ascertain them; let us digest them. We propose no rash innovation; we

wish to give no shock to the prejudices of any part of our subjects. Our

principle is simply this; uniformity where you can have it: diversity

where you must have it; but in all cases certainty.

As I believe that India stands more in need of a code than any other

country in the world, I believe also that there is no country on which

that great benefit can more easily be conferred. A code is almost the

only blessing, perhaps is the only blessing, which absolute governments

are better fitted to confer on a nation than popular governments.

The work of digesting a vast and artificial system of unwritten

jurisprudence is far more easily performed, and far better performed, by

few minds than by many, by a Napoleon than by a Chamber of Deputies and

a Chamber of Peers, by a government like that of Prussia or Denmark

than by a government like that of England. A quiet knot of two or three

veteran jurists is an infinitely better machinery for such a purpose

than a large popular assembly divided, as such assemblies almost always

are, into adverse factions. This seems to me, therefore, to be precisely

that point of time at which the advantage of a complete written code of

laws may most easily be conferred on India. It is a work which cannot

be well performed in an age of barbarism, which cannot without great

difficulty be performed in an age of freedom. It is a work which

especially belongs to a government like that of India, to an enlightened

and paternal despotism.

I have detained the House so long, Sir, that I will defer what I had to

say on some parts of this measure, important parts, indeed, but far less

important, as I think, than those to which I have adverted, till we are

in Committee. There is, however, one part of the bill on which, after

what has recently passed elsewhere, I feel myself irresistibly impelled

to say a few words. I allude to that wise, that benevolent, that noble

clause which enacts that no native of our Indian empire shall, by reason

of his colour, his descent, or his religion, be incapable of holding

office. At the risk of being called by that nickname which is regarded

as the most opprobrious of all nicknames by men of selfish hearts and

contracted minds, at the risk of being called a philosopher, I must say

that, to the last day of my life, I shall be proud of having been one

of those who assisted in the framing of the bill which contains that

clause. We are told that the time can never come when the natives of

India can be admitted to high civil and military office. We are told

that this is the condition on which we hold our power. We are told that

we are bound to confer on our subjects every benefit--which they

are capable of enjoying?--no;--which it is in our power to confer

on them?--no;--but which we can confer on them without hazard to the

perpetuity of our own domination. Against that proposition I solemnly

protest as inconsistent alike with sound policy and sound morality.

I am far, very far, from wishing to proceed hastily in this most

delicate matter. I feel that, for the good of India itself, the

admission of natives to high office must be effected by slow degrees.

But that, when the fulness of time is come, when the interest of India

requires the change, we ought to refuse to make that change lest we

should endanger our own power, this is a doctrine of which I cannot

think without indignation. Governments, like men, may buy existence too

dear. "Propter vitam vivendi perdere causas," is a despicable policy

both in individuals and in states. In the present case, such a policy

would be not only despicable, but absurd. The mere extent of empire

is not necessarily an advantage. To many governments it has been

cumbersome; to some it has been fatal. It will be allowed by every

statesman of our time that the prosperity of a community is made up of

the prosperity of those who compose the community, and that it is the

most childish ambition to covet dominion which adds to no man's comfort

or security. To the great trading nation, to the great manufacturing

nation, no progress which any portion of the human race can make in

knowledge, in taste for the conveniences of life, or in the wealth by

which those conveniences are produced, can be matter of indifference.

It is scarcely possible to calculate the benefits which we might derive

from the diffusion of European civilisation among the vast population of

the East. It would be, on the most selfish view of the case, far better

for us that the people of India were well governed and independent of

us, than ill governed and subject to us; that they were ruled by their

own kings, but wearing our broadcloth, and working with our cutlery,

than that they were performing their salams to English collectors and

English magistrates, but were too ignorant to value, or too poor to buy,

English manufactures. To trade with civilised men is infinitely more

profitable than to govern savages. That would, indeed, be a doting

wisdom, which, in order that India might remain a dependency, would make

it an useless and costly dependency, which would keep a hundred millions

of men from being our customers in order that they might continue to be

our slaves.

It was, as Bernier tells us, the practice of the miserable tyrants whom

he found in India, when they dreaded the capacity and spirit of some

distinguished subject, and yet could not venture to murder him, to

administer to him a daily dose of the pousta, a preparation of opium,

the effect of which was in a few months to destroy all the bodily and

mental powers of the wretch who was drugged with it, and to turn him

into a helpless idiot. The detestable artifice, more horrible than

assassination itself, was worthy of those who employed it. It is no

model for the English nation. We shall never consent to administer the

pousta to a whole community, to stupefy and paralyse a great people whom

God has committed to our charge, for the wretched purpose of rendering

them more amenable to our control. What is power worth if it is

founded on vice, on ignorance, and on misery; if we can hold it only

by violating the most sacred duties which as governors we owe to the

governed, and which, as a people blessed with far more than an ordinary

measure of political liberty and of intellectual light, we owe to a race

debased by three thousand years of despotism and priestcraft? We are

free, we are civilised, to little purpose, if we grudge to any portion

of the human race an equal measure of freedom and civilisation.

Are we to keep the people of India ignorant in order that we may keep

them submissive? Or do we think that we can give them knowledge without

awakening ambition? Or do we mean to awaken ambition and to provide it

with no legitimate vent? Who will answer any of these questions in the

affirmative? Yet one of them must be answered in the affirmative, by

every person who maintains that we ought permanently to exclude the

natives from high office. I have no fears. The path of duty is plain

before us: and it is also the path of wisdom, of national prosperity, of

national honour.

The destinies of our Indian empire are covered with thick darkness. It

is difficult to form any conjecture as to the fate reserved for a

state which resembles no other in history, and which forms by itself

a separate class of political phenomena. The laws which regulate its

growth and its decay are still unknown to us. It may be that the public

mind of India may expand under our system till it has outgrown that

system; that by good government we may educate our subjects into a

capacity for better government; that, having become instructed in

European knowledge, they may, in some future age, demand European

institutions. Whether such a day will ever come I know not. But never

will I attempt to avert or to retard it. Whenever it comes, it will be

the proudest day in English history. To have found a great people sunk

in the lowest depths of slavery and superstition, to have so ruled

them as to have made them desirous and capable of all the privileges of

citizens, would indeed be a title to glory all our own. The sceptre may

pass away from us. Unforeseen accidents may derange our most profound

schemes of policy. Victory may be inconstant to our arms. But there are

triumphs which are followed by no reverse. There is an empire exempt

from all natural causes of decay. Those triumphs are the pacific

triumphs of reason over barbarism; that empire is the imperishable

empire of our arts and our morals, our literature and our laws.

*****

EDINBURGH ELECTION, 1839. (MAY 29, 1839) A SPEECH DELIVERED AT EDINBURGH

ON THE 29TH OF MAY 1839.

The elevation of Mr Abercromby to the peerage in May 1839, caused a

vacancy in the representation of the city of Edinburgh. A meeting of

the electors was called to consider of the manner in which the vacancy

should be supplied. At this meeting the following Speech was made.

My Lord Provost and Gentlemen,--At the request of a very large and

respectable portion of your body, I appear before you as a candidate

for a high and solemn trust, which, uninvited, I should have thought

it presumption to solicit, but which, thus invited, I should think it

cowardice to decline. If I had felt myself justified in following my own

inclinations, I am not sure that even a summons so honourable as that

which I have received would have been sufficient to draw me away from

pursuits far better suited to my taste and temper than the turmoil of

political warfare. But I feel that my lot is cast in times in which

no man is free to judge, merely according to his own taste and temper,

whether he will devote himself to active or to contemplative life; in

times in which society has a right to demand, from every one of its

members, active and strenuous exertions. I have, therefore, obeyed your

call; and I now present myself before you for the purpose of offering

to you, not, what I am sure you would reject with disdain, flattery,

degrading alike to a candidate, and to a constituent body; but such

reasonable, candid, and manly explanations as become the mouth of a free

man ambitious of the confidence of a free people.

It is hardly necessary for me to say that I stand here unconnected with

this great community. It would be mere affectation not to acknowledge

that with respect to local questions I have much to learn; but I hope

that you will find in me no sluggish or inattentive learner. From an

early age I have felt a strong interest in Edinburgh, although attached

to Edinburgh by no other ties than those which are common to me with

multitudes; that tie which attaches every man of Scottish blood to the

ancient and renowned capital of our race; that tie which attaches every

student of history to the spot ennobled by so many great and memorable

events; that tie which attaches every traveller of taste to the most

beautiful of British cities; and that tie which attaches every lover

of literature to a place which, since it has ceased to be the seat of

empire, has derived from poetry, philosophy, and eloquence a far higher

distinction than empire can bestow. If to those ties it shall now be

your pleasure to add a tie still closer and more peculiar, I can only

assure you that it shall be the study of my life so to conduct myself

in these our troubled times that you may have no reason to be ashamed of

your choice.

Those gentlemen who invited me to appear as a candidate before you were

doubtless acquainted with the part which I took in public affairs during

the three first Parliaments of the late King. Circumstances have since

that time undergone great alteration; but no alteration has taken place

in my principles. I do not mean to say that thought, discussion, and the

new phenomena produced by the operation of a new representative system,

have not led me to modify some of my views on questions of detail; but,

with respect to the fundamental principles of government, my opinions

are still what they were when, in 1831 and 1832, I took part, according

to the measure of my abilities, in that great pacific victory which

purified the representative system of England, and which first gave a

real representative system to Scotland. Even at that time, Gentlemen,

the leaning of my mind was in favour of one measure to which the

illustrious leader of the Whig party, whose name ought never to be

mentioned without gratitude and reverence in any assembly of British

electors, I mean Earl Grey, was understood to entertain strong

objections, and to which his Cabinet, as a Cabinet, was invariably

opposed. I speak of the vote by ballot. All that has passed since that

time confirms me in the view which I was then inclined to take of

that important question. At the same time I do not think that all the

advantages are on one side and all the disadvantages on the other. I

must admit that the effect of the practice of secret voting would be to

withdraw the voter from the operation of some salutary and honourable,

as well as of some pernicious and degrading motives. But seeing, as

I cannot help seeing, that the practice of intimidation, instead of

diminishing, is gaining ground, I am compelled to consider whether the

time has not arrived when we are bound to apply what seems the only

efficient remedy. And I am compelled to consider whether, in doing so,

I am not strictly following the principles of the Reform Bill to the

legitimate conclusions. For surely those who supported the Reform Bill

intended to give the people of Britain a reality, not a delusion; to

destroy nomination, and not to make an outward show of destroying it;

to bestow the franchise, and not the name of the franchise; and least of

all, to give suffering and humiliation under the name of the franchise.

If men are to be returned to Parliament, not by popular election, but

by nomination, then I say without hesitation that the ancient system was

much the best. Both systems alike sent men to Parliament who were not

freely chosen by independent constituent bodies: but under the old

system there was little or no need of intimidation, while, under the new

system, we have the misery and disgrace produced by intimidation added

to the process. If, therefore, we are to have nomination, I prefer the

nomination which used to take place at Old Sarum to the nomination which

now takes place at Newark. In both cases you have members returned at

the will of one landed proprietor: but at Newark you have two hundred

ejectments into the bargain, to say nothing of the mortification and

remorse endured by all those who, though they were not ejected, yet

voted against their consciences from fear of ejectment.

Miscellaneous Writings and Speeches — Volume 4 · 第 13 / 45 段